Judge Nelson: The counsel for the Government should give to the counsel on the other side, before the summing up is commenced, all the authorities on which they intend to rely.
Mr. Evarts: That we shall do, of course.
Judge Nelson: We will take them now.
Mr. Evarts: I refer to 1st East's Pleas of the Crown, 70-1.
It is under the title of Treason, but it is on the point of the character of the crime as qualified by the influence on the party, of force, or of the state of the population by which the accused was surrounded. I read from page 70:
"Joining with rebels freely and voluntarily in any act of rebellion is levying war against the King; and this, too, though the party was not privy to their intent. This was holden in the case of the Earl of Southampton, and again in Purchase's case, in 1710. But yet it seems necessary, in this case, either that the party joining with rebels, and ignorant of their intent at the time, should do some deliberate act towards the execution of their design, or else should be found to have aided and assisted those who did. * * * But if the joining with rebels be from fear of present death, and while the party is under actual force, such fear and compulsion will excuse him. It is incumbent, however, on the party setting up this defence, to give satisfactory proof that the compulsion continued during all the time that he stayed with the rebels."
The case of Axtell, one of the regicides, is referred to. The defense was set up for him that he acted by command of his superior officer; but that was ruled to be no defence. I now read from page 104:
"One species of treason, namely, that of committing hostilities at sea, under color of a foreign commission, or any other species of adherence to the King's enemies there, may be indicted and tried as piracy, by virtue of the statutes."
That is, that although being guilty of treason, in its general character of adhering to the enemy, yet it also falls within the description of piracy, and may be proceeded against as such. On the question of the element of force or intimidation as entering into the crime of robbery, I refer to 1st Hawkins' Pleas of the Crown, page 235:
"Wherever a person assaults another with such circumstances of terror as put him into fear, and cause him, by reason of such fear, to part with his money, the taking thereof is adjudged robbery, whether there were any weapon drawn, or not, or whether the person assaulted delivered his money upon the other's command, or afterwards gave it him upon his ceasing to use force, and begging an alms; for he was put into fear by his assault, and gives him his money to get rid of him.